JUDGMENT 1. - This judgement will dispose of the appeal filed by Kashi Ram assailing his conviction for offence under section 302, 325 and 323 IPC by impugned judgement dated 27.06.2008 and the revision petition filed by complainant-Kamlesh against the same judgement challenging acquittal of the accused-respondents for offences under section 147, 148, 149, 325 read with Section 149, 323 read with Section 149, 341 and 302 IPC and also seeking conviction of accused-respondents Ram Jeevan, Ram Niwas, Balu, Gopal, Madan Lal & Sheonarayan for graver offences for which they were charged. 2. The facts which are essential for deciding these matters are that complainant-Kamlesh S/o Radha Kishan submitted a written report at Police Station Tonk on 26.10.2006 at about 10.15 pm alleging that in the evening at about 8 o' clock on that day while he was sitting in the outer room (poly) of his house with his father Radha Kishan, accused Kashi Ram, who was having "lakri" in his hand, came there and started abusing his father. His father came out of the house and for bad him from doing so. Thereupon Kashi Ram, Badan, Gopal & Shivji attacked him with "lakri" and "gandasi" and caused fatal injuries. On hearing hue and cry of his father, this informant, Hanuman, Raju, Shankar, Banna Lal and Chhitar came there to intervene. On the other hand, Ram Jeevan, Sheoraj, Balu, Pappu, Ram Niwas, Sheonarain and Surendra, who were all armed with "lakris" came there from the side of accused Kashi Ram and started beating the informant-Kamlesh, Shankar, Raju and Hanuman. His father Radha Kishan became unconscious and fell down. Thereafter, Madan, Gopal and Sheoji also caused several injuries by lathis. Shankar, his uncle Chhitar and Banna Lal and other members of family intervened to save them or else the accused would have killed his father. The informant has brought his father to the hospital. The police on the basis of aforesaid written report, registered FIR no.206/06 for offence under section 143, 341, 323 & 307 IPC. 3. The injured Radha Kishan succumbed to the injuries on the same day and therefore offence under section 302 IPC was also added to the already registered FIR. The police after conclusion of the investigation filed charge sheet against the accused-appellant Kashi Ram and others under section 302, 147, 148, 323 & 325 IPC. 3. The injured Radha Kishan succumbed to the injuries on the same day and therefore offence under section 302 IPC was also added to the already registered FIR. The police after conclusion of the investigation filed charge sheet against the accused-appellant Kashi Ram and others under section 302, 147, 148, 323 & 325 IPC. On committal, the trial court framed charges against the accused-appellant for offence under Sections 148, 302, 325 IPC and alternatively 325 r/w 149, 323 alternatively 323 r/w 149 & 341 IPC. The accused denied the charges and claimed to be tried. The prosecution produced 23 witnesses and exhibited 42 documents. Defence produced 3 witnesses and exhibited 27 documents. The learned trial court on conclusion of the trial, convicted the accused-appellant Kashi Ram under Section 302 IPC and sentenced him to life imprisonment with fine of Rs. 5,000, in default whereof, he was to further undergo rigorous imprisonment of one year. He was also convicted for offence under Section 325 IPC and sentenced to rigorous imprisonment of two years with fine of Rs. 500, in default whereof, he was to further undergo rigorous imprisonment of 15 days, and also for offence under Section 323 IPC and sentenced to simple imprisonment of three months. All the sentences were ordered to run concurrently. 4. All other accused were acquitted of various charges except Ram Jeevan, Ram Niwas, Balu, Gopal, Madan Lal and Sheonarain, who were convicted for offence under section 323 IPC. Considering that this was their first offence, they were released on probation under Section 3 of Probation of Offenders Act, 1958 and a fine of Rs. 2,000 was imposed on each of them. 5. We have heard Shri Kapil Gupta, learned counsel on behalf of Shri Anil Upman, learned counsel for the appellant, Shri R.S. Raghav, Public Prosecutor for State and Shri Praveen Balwada with Shri Deepak Soni, learned counsel for the complainant/revision petitioner. 6. Shri Kapil Gupta, learned counsel for the appellant has argued that the informant in the written report did not make any specific allegation against the accused-appellant Kashi Ram or any other accused for causing injuries to the deceased. According to the injury report and the postmortem report of deceased, both of which were cumulatively marked as Ex.P19, the deceased sustained four injuries, but Dr. Satya Narain (PW9), who conducted the postmortem, clarified in his statement that injury no. According to the injury report and the postmortem report of deceased, both of which were cumulatively marked as Ex.P19, the deceased sustained four injuries, but Dr. Satya Narain (PW9), who conducted the postmortem, clarified in his statement that injury no. 3 and 4 were, in fact, not independent, but effect of injury no. 1 and 2. Injury no. 3 was bleeding from nostril and injury no. 4 was blood clotted on the upper eye lead in the size of 2 x 1 inches. Thus, actually deceased sustained only two injuries, both by blunt weapon. Learned counsel for the appellant submits that if they were two injuries and the eye witnesses namely; Shankar (PW6) Kamlesh (PW10), Rajkumar (PW11) and Hanuman (PW12) and four other witnesses, who also claimed to be eye witnesses i.e. Shrinarayan (PW7), Banna (PW15), Ladu (PW16) and Chhitar (PW17), all have alleged that first injury on the head of deceased was caused by accused-appellant Kashi Ram and thereafter other accused also subjected the deceased to beating, it is not ascertainable as to which of the two head injuries was caused by which accused. The learned trial court has throughout the judgement belaboured under the impression as if it was only one injury, which is attributed to the accused-appellant Kashi Ram, whereas, in fact, there were two injuries and both of which proved fatal as per the opinion of Dr. Satyanarayan (PW9). In the postmortem report also, his opinion is that cause of death was hemorrhagic shock and damage to the vital organs including brain, both of which injuries were on head. 7. Learned counsel further argued that the trial court itself recorded the erroneous finding for convicting the accused-appellant for offence under section 302 IPC. It has observed that deceased Radha Kishan was aged 65 years and that accused while inflicting one or two lathi blows on his head were fully aware that deceased in view of his age, would in all likelihood die. A person of ordinary prudence would have the knowledge that if one or two blows are delivered on head of an old aged person of 65 years, he would certainly die. A person of ordinary prudence would have the knowledge that if one or two blows are delivered on head of an old aged person of 65 years, he would certainly die. Besides, the learned trial court also held that head was a vital part of the body and if one or two blows are delivered on head, a person is bound to die, therefore, the offence of the appellant would be culpable homicide amounting to murder under Section 300 IPC. The learned trial court in coming to that conclusion also recorded a perverse finding that physique of the residents of district Tonk, which is a backward area, is also weak. 8. Learned counsel for the accused-appellant has argued that the learned trial court has also held that there was no motive and that the incident had taken place suddenly without there being any premeditation or pre-planning, even then it has in committing the illegality convicted the accused-appellant under section 302 IPC. 9. Shri Kapil Gupta, learned counsel for the accused-appellant further argued that the evidence of the aforementioned eye witnesses does not conclusively prove as to who was the author of second head injury. Besides, five accused namely; Ram Niwas, Ram Gopal, Badam, Sheonarayan and Keshar Lal, on the side of accused party, have also received injuries where for no explanation was given by the prosecution. The guilt of the accused-appellant would hardly travel beyond Section 325 IPC, the offence for which the other accused namely; Ram Jeevan, Ram Niwas, Balu, Gopal, Madan Lal & Sheonarain have been convicted by the trial court. 10. Learned counsel for the appellant submits that the trial court has recorded the finding that the incident has taken place in two parts; the first part was upto the stage when the deceased Radha Kishan came out of his house and was subjected to beating and second part of the incident started when members of family of deceased/complainant and members of family of accused suddenly came there and started beating each other. 11. Learned counsel for the accused-appellant alternatively submitted that at the maximum the offence of the accused-appellant would not travel beyond Section 304 Part-I IPC. 11. Learned counsel for the accused-appellant alternatively submitted that at the maximum the offence of the accused-appellant would not travel beyond Section 304 Part-I IPC. Since he has already remained in jail for last 9 years, 1 month and 19 days and would have by now already completed ten years inclusive of period of remission, this Court while converting his conviction under Section 302 IPC to one under Section 304 Part-I, should release the accused-appellant on period already undergone by him. 12. Learned Public Prosecutor supported the impugned judgement and submitted that the trial court has already by applying the rule of 'grain and chaff' separated the grain from the chaff and rightly convicted the accused-appellant Kashi Ram for offence under section 302 IPC because there is ample evidence against him to that effect and acquitted the accused-respondents of all other charges except convicting accused Ram Jeevan, Ram Niwas, Balu, Gopal, Madan Lal and Sheonarain for offence under section 323 of IPC. The appeal filed by the accused-appellant, therefore, deserves to be dismissed taking into consideration the fact that the incident has taken place in two parts. 13. Shri Praveen Balwada, learned counsel for the complainant opposed the appeal and submitted that while accused-appellant Kashi Ram has been rightly convicted under Section 302 IPC, the trial court was wholly unjustified in acquitting the other accused-respondents for offence under section 147, 148, 149, 325 read with Section 149, 323 read with Section 149, 341 and 302 IPC, except five of the accused-respondents namely; Ram Jeevan, Ram Niwas, Balu, Gopal, Madan Lal and Sheonarain, who have been convicted only for offence under section 323 of IPC and rather than sentencing them to the imprisonment of substantive period, granted them benefit of probation. Learned counsel has taken the Court through the statement of eye witnesses to argue that specific role has been assigned to each of the accused-respondents, therefore, they ought to be convicted for the offence, for which they were charged. 14. We have given our anxious consideration to the rival submissions and perused the material on record. 15. While it is evident from the first information report, which is based on the parcha bayan of Kamlesh (PW10), that an omnibus allegation was made against all the accused by him but no specific allegation was made against Kashi Ram alone of causing head injury on the person of deceased. 15. While it is evident from the first information report, which is based on the parcha bayan of Kamlesh (PW10), that an omnibus allegation was made against all the accused by him but no specific allegation was made against Kashi Ram alone of causing head injury on the person of deceased. This witness, who was injured and Shankar (PW6), Shrinarayan (PW7), Rajaram (PW8) and Hanuman (PW12), also have attributed the head injury to Kashi Ram although these eye witnesses have thereafter stated as to the role of other accused also in subjecting the deceased to beating. When we analyse the testimony of this witness with Shankar (PW6), who has stated that he was neighbour of Radha Kishan, it is revealed that while he was sitting outside his house, Kashi Ram came there and started abusing Chittar for about 15 minutes. Thereafter, Radha Kishan came out of the house and forbad Kashi Ram from abusing. Kashi Ram, Madan, Sheoji and Gopal came there from the side of accused. Kashi Ram first of all inflicted a 'lakri' blow on Radha Kishan followed by Madan, who also delivered a 'lakri' blow on his head and thereafter, Gopal also inflicted a lathi blow on his head and Sheoji also inflicted lathi blow on his head. This witness further stated that when he tried to intervene, Ram Jeevan inflicted a lathi blow on his head. Kashi Ram inflicted a lathi blow on his left thumb. Likewise Balu, Ram Jeevan, Sheoraj, Surendra and Goma came there armed with 'lakris'. They started beating Rajendra, Hanuman, Chhitar and Om Prakash. This witness apparently is not speaking the truth because if he were to be believed, there should have been four head injuries on the person of deceased, whereas there were only two. Besides, he has attributed his own head injury to Ram Jeevan by lathi, however, he has received only two injuries, which are both by blunt weapon and simple in nature as evident from his injury report (Ex.P16). 16. Kamlesh (PW10), who is informant, has also stated that when he was sitting with his father in the outer room (poly) of his house, Kashi Ram came in front of his house at about 8.00 AM, armed with `lakri' and started abusing. His father Radha Kishan went out of the house and asked him why he is doing so? 16. Kamlesh (PW10), who is informant, has also stated that when he was sitting with his father in the outer room (poly) of his house, Kashi Ram came in front of his house at about 8.00 AM, armed with `lakri' and started abusing. His father Radha Kishan went out of the house and asked him why he is doing so? Thereupon Kashi Ram rushed towards him and inflicted a 'lakri' blow on the head of his father. His father fell down and thereupon Gopal, Sheoji and Madan started beating his father with 'lakris'. Thereafter, this witness (Kamlesh), his brother Hanuman, uncle Chittar and Raju came out of their house. Suddenly, 5-7 persons from accused side also came there with 'lakris' which includes Ram Niwas, Sheonarayan, Surendra, Ram Jeevan, Sheoraj and Balu. They gave beating to his father and this witness himself and also to other persons, who tried to intervene. Kashi Ram caused head injury to his father and also to left hand of this witness and thereafter Sheoraj also inflicted a blow on his left hand. When we analyse his evidence, it becomes evident that he is also not speaking the truth so far as injury on deceased is concerned because deceased sustained only two injuries. As far as his (Kamlesh) own injury is concerned, as per his injury report and x-ray report (Ex.P23 & 24), he has sustained two injuries. While one of them was simple by blunt weapon, injury no. 2 was fracture of upper part of ulna bone of middle finger of right hand. This injury has been attributed by him to Kashi Ram, where for he has been convicted for offence under section 325 IPC. 17. Rajkumar (PW11) is also one of the injured eye witness. He has also exaggerated his statements. He has similarly stated that the first injury by lathi blow on the head of deceased Radha Kishan was caused by Kashi Ram, whom he forbad from abusing. Thereafter, when he fell down, Madan, Sheoji and Gopal also gave him beatings by lathis. And when this witness (Raj Kumar), Hanuman, Chittar and Kamlesh tried to intervene, they too were subjected to beating by accused Ram Jeevan, Ram Niwas, Balu, Sheonarayan, Sheoraj and Surendra. He has alleged that Madan, Sheonarayan, Sheoji and Surendra caused injuries on his head. Thereafter, when he fell down, Madan, Sheoji and Gopal also gave him beatings by lathis. And when this witness (Raj Kumar), Hanuman, Chittar and Kamlesh tried to intervene, they too were subjected to beating by accused Ram Jeevan, Ram Niwas, Balu, Sheonarayan, Sheoraj and Surendra. He has alleged that Madan, Sheonarayan, Sheoji and Surendra caused injuries on his head. This witness as per his MLR (Ex.P21) sustained four injuries, all of which were simple in nature by blunt weapon. Thus, it is evident that he too has made lot of exaggerations in his statement like other injured eye witnesses. Hanuman (PW12), is yet another eye witness, who has also stated that when Kashi Ram was abusing in front of their house, his father Radha Kishan asked him to not to do so. 18. Thereupon, Kashi Ram inflicted a lathi blow on the head of his father. Three persons namely; Madan, Gopal and Sheoji, who were holding lathis in their hands, also subjected his father to beating. When this witness, Kamlesh, Chittar and Raju tried to intervene, accused Sheonarayan, Balu, Ram Jeevan, Ram Niwas, Sheoraj and Surendra, who had lathis in their hands also started beating them. When his MLR (Ex.P25) is seen, it is evident that he sustained only one injury by blunt weapon. Thus, apparently, he also enormously exaggerated his allegations in his statement. 19. Even though Shrinarayan (PW7), Banna (PW15), Ladu (PW16) and Chittar (PW17) are not injured, but they also claimed to be eye witnesses and made similar allegations. The Court has also analysed the allegations of these eye witnesses in the light of the injuries on the side of accused also. While Ram Niwas as per his injury report (Ex.D21) has sustained two injuries, one of which as per the x-ray report (Ex.D22) was found to be grievous, Ram Gopal as per his injury report (Ex.D23) sustained six injuries, which are simple by blunt weapon. Badam sustained three simple injuries as per injury report (Ex.D25) and Sheonarayan and Keshar Lal have sustained one simple injury each as per their injury report Ex.D26 and D27 respectively. The cross cases were registered. Badam sustained three simple injuries as per injury report (Ex.D25) and Sheonarayan and Keshar Lal have sustained one simple injury each as per their injury report Ex.D26 and D27 respectively. The cross cases were registered. The learned trial court has made quite interesting discussion as to the guilt of the accused-appellant Kashi Ram at page 22 of the judgement that guilt of a person is determined by his geographical conditions and since district Tonk was an undeveloped area, where mostly poor people resides, the physique of a person in that area is quite helpless and weak especially when he is 65 years old and if two blows are delivered on his head, it would lead to his death and therefore, the case would surely fall under Section 302 of IPC. At the same time, the trial court has held that there was no motive. It has also held that incident had taken place suddenly without any pre-plan and premeditation. Even then, it has convicted the accused-appellant Kashi Ram for offence of culpable homicide amounting to murder under section 302 IPC. Curiously, the trial court has held that incident took place in two parts. First part of the incident had taken place when Radha Kishan was subjected to beating by Kashi Ram when he walked out of his house to forbid him from abusing and second part had taken place when the family members of Kashi Ram came to his house in his support and the family members of the deceased also participated in the incident. Then started a free fight between the parties leading to injuries on the members of both the sides, most of which are simple in nature. The trial court to the extent of holding the accused-appellant-Kashi Ram responsible for his own individual act and also other accused persons for their individual act of causing injuries on the side of complainant party, was justified but in the facts like this when it has recorded the finding that incident had taken place suddenly without premeditation or pre-planning and that there was no motive and that the allegation of the eye witnesses in so far as role of other accused of causing injuries to the deceased, is not conclusively established, conviction of the accused-appellant Kashi Ram alone for offence under section 302 IPC cannot be justified. However, the finding that accused-appellant being a person of ordinary prudence when he was inflicting lathi blow on the head of deceased, knew that deceased being 65 years of age and coming from a backward district like Tonk, would not be capable of sustaining such fatal injury, his offence would fall within the meaning of culpable homicide amounting to murder in the meaning of Section 299 read with Section 300 IPC, in our considered opinion, cannot be countenanced as no such generation can be made. In view of the nature of allegation and evidence in the present case, the act of the accused-appellant, by which death of Radha Kishan was caused, was done with the intention of causing death or causing such fatal injury as was likely to cause his death and thus would fall in Part-I of Section 304 IPC. The conviction of accused-appellant Kashi Ram for offence under section 302 deserves to be therefore set aside and instead he deserves to be convicted for offence under section 304 Part-I IPC. 20. In view of above discussion, while we are persuaded to partly allow the appeal filed by the accused-appellant-Kashi Ram, we are not inclined to accept the revision petition filed by the complainant. Resultantly, the appeal is allowed in part, the revision petition is liable to be dismissed. Conviction of accused-appellant-Kashi Ram for offence under section 325 and 323 IPC and sentence awarded on those counts is maintained. His conviction for offence under section 302 IPC is set aside and he is instead convicted for offence under section 304 Part-I IPC and sentenced to rigorous imprisonment of ten years. As per the record, accused-appellant was arrested on 28.10.2006, thus he is in jail for last 9 years, 1 month and 19 days. If after inclusion of the period of remission, he has served out the sentence of ten years, he may be released forthwith, provided he is not required to be detained in connection with any other case. 21. Keeping in view, however, the provisions of Section 437A of the Code of Criminal Procedure, the appellant is directed to forthwith furnish a personal bond in the sum of Rs. 21. Keeping in view, however, the provisions of Section 437A of the Code of Criminal Procedure, the appellant is directed to forthwith furnish a personal bond in the sum of Rs. 20,000 each and a surety bond in the like amount before the Deputy Registrar (Judl.) of this Court, which shall be effective for a period of six months, undertaking that in the event of Special Leave to Petition being filed against this judgement or on grant of leave, the appellant, on receipt of notice thereof, shall appear before the Supreme Court.Appeal partly allowed. *******